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February 20, 2013

[Sri Lanka is faced with two worsening and inter-connected governance crises. The dismantling of the independent judiciary and other democratic checks on the executive and military will inevitably feed the growing ethnic tension resulting from the absence of power sharing and the denial of minority rights. Both crises have deepened with the Rajapaksa government’s refusal to comply with the HRC’s March 2012 resolution on reconciliation and accountability. While the government claims to have implemented many of the recommendations of its Lessons Learnt and Reconciliation Commission (LLRC) – a key demand of the HRC’s resolution – there has in fact been no meaningful progress on the most critical issues:]

Asia
Report N°243

EXECUTIVE SUMMARY AND
RECOMMENDATIONS

Government attacks on the
judiciary and political dissent have accelerated Sri Lanka’s authoritarian turn
and threaten long-term stability and peace. The government’s politically
motivated impeachment of the chief justice reveals both its intolerance of dissent
and the weakness of the political opposition. By incapacitating the last
institutional check on the executive, the government has crossed a threshold
into new and dangerous terrain, threatening prospects for the eventual peaceful
transfer of power through free and fair elections. Strong international action
should begin with Sri Lanka’s immediate referral to the Commonwealth
Ministerial Action Group (CMAG) and a new resolution from the UN Human Rights
Council (HRC) calling for concrete, time-bound actions to restore the rule of
law, investigate rights abuses and alleged war crimes by government forces and
the Liberation Tigers of Tamil Eelam (LTTE), and devolve power to Tamil and
Muslim areas of the north and east.

Sri Lanka is faced with two
worsening and inter-connected governance crises. The dismantling of the
independent judiciary and other democratic checks on the executive and military
will inevitably feed the growing ethnic tension resulting from the absence of
power sharing and the denial of minority rights. Both crises have deepened with
the Rajapaksa government’s refusal to comply with the HRC’s March 2012
resolution on reconciliation and accountability. While the government claims to
have implemented many of the recommendations of its Lessons Learnt and
Reconciliation Commission (LLRC) – a key demand of the HRC’s resolution – there
has in fact been no meaningful progress on the most critical issues:

·the government has conducted no credible investigations into
allegations of war crimes, disappearances or other serious human rights
violations;

·rather than establish independent institutions for oversight and
investigation, the government has in effect removed the last remnants of
judicial independence through the impeachment of the chief justice;

·there has been no progress toward a lasting and fair
constitutional settlement of the ethnic conflict through devolution of power;

·the military still controls virtually all aspects of life in the
north, intimidating and sidelining the civilian administration;

·more than 90,000 people remain displaced in the north and east,
amid continued land seizures by the military, with no effective right of appeal
and no fair process for handling land disputes;

·government security forces have broken up peaceful Tamil protests
in the north, detained students on questionable charges of working with the
LTTE and actively harassed Tamil politicians;

·the government has responded with force to protest and dissent
in the south, too, deploying troops to prevent the newly impeached chief
justice and supporters from visiting the Supreme Court while pro-government
groups attacked lawyers protesting the impeachment.

Analysts and government critics
have warned of Sri Lanka’s growing authoritarianism since the final years of
the civil war, but developments over the last year have worsened the situation.
The president’s willingness and ability to push through the impeachment – in
the face of contrary court rulings, unprecedented opposition from civil society
and serious international concern – confirms his commanding political position.
The move completes the “constitutional coup” initiated in September 2010 by the
eighteenth amendment, which removed presidential term limits and the
independence of government oversight bodies. It has sent a clear message to
domestic critics that their dissent is unwelcome.

The consolidation of power paves
the way for moves that could further set back chances of sustainable peace. The
president and his two most powerful brothers – Defence Secretary Gotabaya and
Economic Development Minister Basil – have signalled their intention to weaken
or repeal the provinces’ already minimal powers. As the government makes
explicit its hostility to meaningful power sharing between the centre and the
Tamil-speaking north and east, Tamil identity and political power are being
systematically undermined by the military-led political and economic
transformation of the northern province.

Recent months have also seen an
upsurge in attacks by militant Buddhists on Muslim religious sites and
businesses. The government has done little to discourage these. Should such
provocations continue, the remarkable moderation of Sri Lanka’s Muslims could
face serious tests. Given the country’s history of violent resistance to state
power perceived as unjust, the authoritarian drift can only increase the risk
of an eventual outbreak of political violence.

Sri Lankans of all ethnicities
who have struggled to preserve their democracy deserve stronger international
support. The HRC’s 2012 resolution was an important first step, but more is
needed. This should begin with a stronger HRC resolution in March 2013, which
must demand concrete reforms to end impunity and restore the rule of law;
mandate the Office of the High Commissioner for Human Rights (OHCHR) to monitor
violations and investigate the many credible allegations of war crimes
committed in the final months of the war by both sides; and, where possible,
identify individuals most responsible.

The Commonwealth secretary
general should formally refer Sri Lanka to the Commonwealth Ministerial Action
Group (CMAG), which should insist that the government take substantial steps to
restore the independence of the judiciary. Were it to refuse, the Commonwealth
should relocate its November 2013 heads of government meeting, currently
scheduled to take place in Colombo, or at the very least participants should
downgrade their representation.

All governments and multilateral
institutions with active ties to Sri Lanka must rethink their approach and
review their programs in light of Colombo’s deepening and dangerous
authoritarian drift. This includes military-to-military relations and bilateral
and multilateral development assistance, including from the UN, World Bank,
Asian Development Bank and International Monetary Fund.

RECOMMENDATIONS

To the government of Sri
Lanka:

1. Comply with current and
future HRC resolutions, including by implementing the core recommendations of
the LLRC on governance, the rule of law, accountability, devolution of power
and reconciliation, through a process that includes opposition political parties
and independent civil society representatives of all ethnic communities.

2. Support meaningful
reconciliation bypublishing
the full LLRC report in Sinhala and Tamil, allowing the national anthem to be
sung in Tamil at official events and holding public ceremonies to honour the
death and suffering of civilians from all communities.

a) notes clearly the government’s refusal to respect the
previous resolution by failing to implement the most important LLRC
recommendations and refusing to investigate credibly allegations of grave
violations of international humanitarian law;

b) details specific measures the government must takewithin the coming year;

c) requests the government to investigate independently
the credible allegations of international humanitarian law violations;

d) tasks OHCHR with monitoring and reporting to the
council on progress in implementing the resolution and on any violations, and
with undertaking investigations and making appropriate recommendations with
respect to violations allegedly committed in the final months of the war,
including by compiling a list of individuals about whom there is credible
evidence.

e) encourages the government to invite those special
rapporteurs with outstanding requests to visit Sri Lanka, and requests them to
compile a joint report on the country’s compliance with its international
obligations.

To the Commonwealth
Secretariat and member states:

4. Refer Sri Lanka to the
Commonwealth Ministerial Action Group (CMAG), which should insist that the
government take substantial steps to restore the independence of the judiciary,
including, at a minimum, by:

a) reestablishing earlier constitutional provisions –
abolished by the eighteenth amendment – to ensure a less politicised selection
of judges;

b) changing current parliamentary provisions for removing
senior judges to bring them in line with international standards; and

c) abandoning government plans to limit a chief justice’s
term to three years.

5. Relocate, should the
government fail to make these changes, the November 2013 heads of government
meeting away from Colombo, or downgrade representation to ministerial level.

To the UN Secretary-General:

6. Use his powers under
section 99 of the UN Charter to establish a commission of inquiry into alleged
violations of international law, should the HRC decline to do so or to task
OHCHR to undertake investigations.

7. Establish a mechanism to
“monitor and assess the extent to which the Government of Sri Lanka is carrying
out an effective domestic accountability process”.

To the UN Secretariat,
country team and agencies in Sri Lanka:

8. Undertake a “human
rights audit”, led by the country team, of all programming to examine where and
how these can better integrate human rights protection, including a survey of
the protection needs of past and present humanitarian workers, both in and out
of Sri Lanka.

9. Review Sri Lanka’s
contributions to peacekeeping operations and reject its participation until
credible investigations of war crimes allegations and prosecutions are carried
out.

To the governments of
India, the U.S., EU, UK, Canada, Australia, Norway, Switzerland, Japan and
South Africa:

10. Investigate, gather and
share evidence regarding alleged war crimes and human rights abuses by
government forces and the LTTE where possible, support victims and offer
witness protection when necessary.

11. Refrain from accepting
the diplomatic credentials of Sri Lankan military officers against whom there
are credible allegations of serious crimes; cease trainings – other than in
human rights – and joint exercises with the military; and apply targeted
pressure on government leaders, including restrictions on personal travel until
the government complies with HRC resolutions.

To the World Bank, Asian
Development Bank and International Monetary Fund:

12. Review all programs in
Sri Lanka and conduct a study of governance and land issues and how these
affect the sustainability and equity of their development assistance.

13. Press strongly, both
privately and publicly, for the government to adopt the LLRC’s recommendations,
particularly on reestablishing judicial independence and an independent bribery
commission, enacting a freedom of information law, protecting the rights of
citizens to speak freely and contribute to the formulation of development policies,
and reforming policies on land and land disputes.